Bill S3268-2013

Creates the crime of related use of a lethal or explosive device

Creates the crime of related used of a lethal or explosive device; provides for additional 7 years imprisonment for certain crimes where a lethal or explosive is used and; permits exemption from such additional sentence when the defendant provides court with the source of such lethal or explosive device.

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TITLE OF BILL: An act to amend the penal law, in relation to the related use of a lethal or explosive device

PURPOSE: To impose a sentence of seven years consecutive to whatever sentence is imposed on the underlying offense when the defendant possesses a lethal device such as a machine gun, pistol, revolver, shotgun, rifle, assault weapon, electric dart, stun gun, explosive device, bomb, grenade, rocket, missile or mine.

SUMMARY OF PROVISIONS: This legislation would add an additional consecutive sentence of seven years onto the sentence of an offender who commits any offense while in possession of a lethal or explosive device as described in the preceding paragraph.

That additional seven year sentence will not be imposed if the defendant, within 60 days of arraignment on the indictment or superior court information, truthfully to the satisfaction of the court provides the district attorney with all the information the defendant has concerning the source or the sources of the lethal or explosive device.

The additional seven year sentence will not be waived when the use of the lethal or explosive device has resulted in the death of or serious injury to a person who was not a participant in the offense.

A defendant who qualifies for the waiver will be RULED out and will not have to serve the added consecutive seven year term. Those who fail to qualify will be RULED in and will have to serve that consecutive term.

Most of the illegal weapons used against New Yorkers do not lawfully originate within the State of New York and are smuggled into our state by lucrative underground networks. Intelligence garnered through the truthful debriefings of those who possess such illegal weapons while committing other crimes will provide substantial assistance to law enforcement in its effort to combat these underground smuggling networks. The ability to gather such crucially important intelligence will also provide substantial assistance to law enforcement in its effort to battle gangs and other underground criminal networks, which enterprises will be severely hampered once their criminal members have to fear that a conspirator arrested with a weapon while committing a crime will have to provide otherwise secretive intelligence on pain of having to serve an additional seven years consecutive to the prison term imposed on the underlying offense.

FISCAL IMPLICATIONS: None.

EFFECTIVE DATE: Takes effect on the first November next succeeding the date on which it shall become law.

Text

STATE OF NEW YORK
________________________________________________________________________
3268
2013-2014 Regular Sessions
IN SENATE
January 31, 2013
___________

Introduced by Sen. KRUEGER -- read twice and ordered printed, and when
printed to be committed to the Committee on Codes
AN ACT to amend the penal law, in relation to the related use of a
lethal or explosive device
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The penal law is amended by adding a new section 265.07 to
read as follows:
S 265.07 RELATED USE OF LETHAL OR EXPLOSIVE DEVICE.
1. A PERSON IS GUILTY OF RELATED USE OF A LETHAL OR EXPLOSIVE DEVICE
WHEN HE OR SHE COMMITS ANY OFFENSE WHILE IN POSSESSION OF A LETHAL OR
EXPLOSIVE DEVICE.
2. NOTWITHSTANDING ANY OTHER PROVISION OF LAW TO THE CONTRARY, ANY
PERSON CONVICTED OF RELATED USE OF A LETHAL OR EXPLOSIVE DEVICE SHALL,
IN ADDITION TO THE PUNISHMENT PROVIDED FOR THE RELATED OR UNDERLYING
OFFENSE, BE SENTENCED TO A DETERMINATE TERM OF IMPRISONMENT FOR SEVEN
YEARS, AND THE TERM OF IMPRISONMENT IMPOSED PURSUANT TO THIS SECTION
SHALL NOT RUN CONCURRENTLY WITH ANY OTHER TERM OF IMPRISONMENT INCLUDING
THAT IMPOSED FOR THE RELATED OR UNDERLYING CRIME.
3. ANY SUCH NON-CONCURRENT TERM REQUIRED TO BE IMPOSED PURSUANT TO
THIS SECTION SHALL, HOWEVER, NOT BE IMPOSED IF:
(A) THE DEFENDANT, WITHIN SIXTY DAYS OF THE DATE OF ARRAIGNMENT ON THE
INDICTMENT OR SUPERIOR COURT INFORMATION, WHICH SIXTY DAY PERIOD MAY BE
EXTENDED IN THE DISCRETION OF THE DISTRICT ATTORNEY, SHALL TRUTHFULLY TO
THE SATISFACTION OF THE COURT PROVIDE THE DISTRICT ATTORNEY WITH ALL THE
INFORMATION THE DEFENDANT HAS CONCERNING THE SOURCE OR SOURCES OF THE
LETHAL OR EXPLOSIVE DEVICE; AND
(B) THE USE OF SUCH LETHAL OR EXPLOSIVE DEVICE HAS NOT RESULTED IN
DEATH OR SERIOUS BODILY INJURY TO ANOTHER PERSON WHO WAS NOT A PARTIC-
IPANT IN THE OFFENSE.

EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01342-01-3

S. 3268 2

4. SO LONG AS THE STATEMENTS MADE BY THE DEFENDANT TO THE DISTRICT
ATTORNEY RELATING TO THE SOURCES OF THE LETHAL OR EXPLOSIVE DEVICE ARE
TRUTHFUL, THEN (A) NO STATEMENT SO MADE SHALL BE USED AS EVIDENCE
AGAINST THE DEFENDANT IN ANY CRIMINAL PROCEEDINGS EXCEPT THAT THE
DISTRICT ATTORNEY MAY USE SUCH STATEMENTS FOR THE PURPOSE OF CROSS-EXA-
MINATION, IMPEACHMENT AND REBUTTAL SHOULD THE DEFENDANT EVER OFFER
CONTRARY EVIDENCE, AND (B) THE DISTRICT ATTORNEY MAY USE AS EVIDENCE
AGAINST THE DEFENDANT ANY INDEPENDENT EVIDENCE WHICH MAY BE DERIVED
THROUGH AN INVESTIGATION INTO THE INFORMATION SO PROFFERED BY THE
DEFENDANT. AT ANY HEARING ON THE ISSUE OF WHETHER THE DEFENDANT'S STATE-
MENTS ARE TRUTHFUL, THE PEOPLE SHALL BEAR THE BURDEN OF SHOWING THAT THE
STATEMENTS ARE NOT TRUTHFUL BY PROOF BEYOND A REASONABLE DOUBT.
5. THE TERM: (A) "LETHAL DEVICE" SHALL MEAN A MACHINE GUN, A PISTOL OR
REVOLVER, EITHER A SHOTGUN, RIFLE OR ASSAULT WEAPON OF ANY LENGTH OR ANY
OBJECT MADE THEREFROM BY ALTERATION, MODIFICATION OR OTHERWISE, AN ELEC-
TRONIC DART GUN, AND AN ELECTRONIC STUN GUN.
(B) "EXPLOSIVE DEVICE" SHALL MEAN ANY EXPLOSIVE, INCENDIARY OR POISON
GAS, BOMB, GRENADE, ROCKET HAVING A PROPELLANT CHARGE OF MORE THAN FOUR
OUNCES, MISSILE HAVING AN EXPLOSIVE OR INCENDIARY CHARGE OF MORE THAN
ONE-QUARTER OUNCE, MINE OR ANY DEVICE SIMILAR TO ANY OF THE DEVICES
DESCRIBED IN THIS SUBDIVISION.
(C) "EXPLOSIVE" SHALL MEAN ANY CHEMICAL COMPOUND MIXTURE OR DEVICE,
THE PRIMARY PURPOSE OF WHICH IS TO FUNCTION BY EXPLOSION.
S 2. This act shall take effect on the first of November next succeed-
ing the date on which it shall have become a law.

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